Lord Carloway

In an address to the Royal Faculty of Procurators in Glasgow on case management and sentencing, Lord Carloway referred to the sentencing guideline that came into effect last November.

When sentencing an offender, a judge must have regard to any relevant sentencing guidelines in relation to the case. If judges decide not to follow the guidelines, they must state their reasons for not doing so.

“One concern with such guidelines is that they may promote an increase in sentences at a practical level. High profile cases or, to put it more accurately, those considered to be so by sections of the media, will lead to calls for the acceleration of this process and, in due course, to produce pressure to change, most likely to increase, the sentences in any existing guidelines,” the Lord President warned.

He endorsed the view of the Lord Justice Clerk, Lady Dorrian, chair of the Scottish Sentencing Council, who warned last month against the rash introduction of sentencing guidelines that have not been properly considered and tested.

“The Lord Justice Clerk, speaking as chair of the council, was correct … to caution against a reactionary introduction of guidelines which have not been properly considered and tested. As she noted, each case is unique.”

He added: “Variations in sentencing will occur as a result of the presiding judge taking into account the particular circumstances. It would be undesirable to use decisions in individual cases as the rationale for changing sentencing policy in general. Such an approach would be unlikely to promote consistency, predictability, or transparency.”

Lord Carloway said that the criminal justice system should provide the “optimal mode of searching for the truth” and that this is “what criminal trials are about”.

The search for truth that a trial embodies must, he added, “be conducted in a way that promotes fairness to the accused, any alleged victims, the witnesses and the jury. It is the window through which the public views and evaluates the system.”